It’s been a full week since the Supreme Court made its landmark ruling about gender. In case you’ve missed it, what happened is that a group from Scotland appealed a ruling that had been made in the Scottish courts about whether trans women could take places on Boards that had been allocated to women. The decision from that case was what we heard last week.
It’s all about the Equalities Act 2010. It’s not a general statement about gender. It’s not an academic text. It’s not a documentary on TV. It’s not an instruction about how we should see the world or about how we should describe ourselves. It’s a ruling about the specifics of one law.
What the judges said – and the full 88-page document is accessible on the internet – is that in relation to the Equalities Act 2010, the terms ‘sex’, ‘man’ and ‘woman’ refer to biological sex and nothing else – not gender reassignment, not self-identification, nothing to do with pronouns, with names, or with how we choose to present ourselves to others.
Put simply, this is what has been stated about interpreting the Equalities Act 2010. Women are biological women. Men are biological men. Trans women are biological men. Trans men are biological women. Non-binary people don’t exist in law. Intersex people are whatever sex has been registered on their birth certificate (which must be done within 42 days of them being born), regardless of chromosomes, genitals, or how they feel inside.
Confused already?
It gets more complicated. Trans women who have a Gender Recognition Certificate are legally female, but still biologically male. Trans men with a Gender Recognition Certificate are legally male, but biologically – and sometimes legally – women. Those same trans men, if in relationships with women, are categorised as lesbians.
What a total mess.
I don’t blame the judges. I have read the full 88 pages, and I honestly think that the judges were trying to bring some legal clarity.
It must have felt impossible, to make a decision of such magnitude, in an area that is so politically charged. They knew that their judgement would be hailed as a victory for the transphobes, for the gender critical feminists, for those people who steadfastly refuse to see gender as anything other than a simple classification of male or female. They tried to warn against using this as a political football. They cautioned against it when they explained their final ruling. They explicitly stated that trans people are still protected in law, that trans people still have rights.
But they couldn’t control it. They couldn’t stop the vitriol and the hate.
The problem that the judges had is the same problem that we all have. The legal system does not reflect the reality of gender.
I blame Darwin.
That might sound a bit harsh, but Darwin has got a lot to answer for.
Darwin has contributed a lot to our understanding of the natural world. I get that. I can see how his work, written over 150 years ago, was groundbreaking in increasing our understanding of animals, of evolution, of what was happening amongst insects, birds, animals and so on. He’s heralded as being one of the most famous and most important biologists in history. I get that. I’m not a Darwin-denier.
But Darwin saw the world through a particular lens. And that lens was wrong. We know that now.
Males as active.
Females as passive.
Sex as only for the purpose of reproduction.
And perhaps the most important one, in relation to the Supreme Court last week. Sex as binary.
The field of Queer Ecology has helped us to see that the natural world is extremely diverse. It is not simple, not clear-cut, and not binary. These ecologists are not just trying to prove a point, they are not using nature to justify political positions. They are simply using a different lens, one with a much wider angle, and they are saying what they see.
Sex-fluid fishes such as parrotfish and clownfish. Intersex animals like the cane toad. Dolphins that pair up as young males and stay together for the rest of their lives. Hyena groups that are female dominated, and where aggressive female hyenas seek out submissive males. Non-binary birds such as the white-throated sparrow. Swans and penguins with examples of males taking the parenting roles. On and on and on.
Don’t get me started on fungi. And trees.
The fact is that nature is not binary.
As humans, we frequently look to the natural world to justify our attitudes and opinions. Humans are animals. If it doesn’t happen in the natural world, then it’s not natural. Blah blah blah.
Surely then, if there is so much evidence of diversity within the natural world, then being trans or intersex or non-binary as a human being is natural. And if so, then why are some ways of being denigrated and mocked and diminished? It makes no sense to me.
You might ask why I blame Darwin, if Darwin was only looking through the lens that was available to him at the time?
I’ll tell you why.
Darwin knew all this.
Darwin knew about the queer, the unconventional, the non-binary, and the non-conforming. He knew and he hushed it up. He hid it because it might confuse or offend his audience. He was constrained by the Victorian values of the time, and so he conveniently hid the truth.
That’s why I blame Darwin.
I think that most people now know the truth. We know that sex is not binary, and that a plethora of gender identities is natural. We know, and yet we are living in a world which was designed in a different way.
It’s time to tell the truth.
Start again.
Tear up the rule book and design a new way of living.
Sex is not binary.
I know that.
Darwin knew that.
And you do too.
Let’s tell the truth.
Check out:
Cook, L. (2022) Bitch: a revolutionary guide to sex, evolution and the female animal. Penguin.
Davies, J.L. (2024) A Little Gay Natural History. Natural History Museum.
Mortimer-Sandilands, C. & Erickson, B. (Eds) (2020) Queer Ecologies. Indiana University Press.